Filed by Bowne Pure Compliance





Exhibit 10.35




REVOLVING NOTE




			
	 	 	 
	Denver, Colorado
	 	$7,000,000
	June 30, 2008	 	 






FOR VALUE RECEIVED, ACROSS AMERICA REAL ESTATE CORP., a Colorado corporation (the “Company”),
hereby promises to pay to the order of GDBA INVESTMENTS, LLLP, a Colorado limited liability limited
partnership or registered assigns (the “Holder”) the sum of Seven Million Dollars ($7,000,000)
(the “Principal”) ), or so much thereof as shall have been advanced to or for the benefit of Maker,
on September 28, 2009 (the “Maturity Date”), on the terms and Conditions set forth herein and in
the Securities Purchase Agreement dated September 28, 2006 (the “Purchase Agreement”). This
Revolving Note is the Revolving Note referred to in the Accrued Interest Payment Agreement as of
June 30, 2008.



Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed
thereto in the Purchase Agreement.



All payments due under this Revolving Note (the “Note”) shall be made in lawful money of the
United States of America




1. Interest; Payments



(a) Interest Rate. Subject to Section 1(b) and 1(c), this Note shall bear interest on
the unpaid Principal balance hereof at the rate (the “Interest Rate”) per annum equal to the
greatest of:



(i) the ninety day average for U.S. Treasury Notes with a ten year maturity as determined on
the last Business Day of the immediate previous calendar quarter, using the constant maturity
calculation, plus 150 basis points;




(ii) six percent (6%); or



(iii) the highest effective interest rate accruing on any outstanding Indebtedness for
Borrowed Money of the Company as defined in the Purchase Agreement (but excluding Third Party
Senior Debt) at any time during the applicable calendar quarter.



(b) Default Interest. If an Event of Default has occurred and is continuing, interest
shall accrue on the unpaid Principal balance of this Note at a rate (the “Default Interest Rate”)
equal to the higher of (i) the Interest Rate plus 800 basis points, or (ii) twenty-four percent
(24%) per annum.



(c) Applicable Law. Notwithstanding any provision of this Note, the Purchase Agreement
or any other agreement to the contrary, the Company shall not be required to pay, and the Holder shall not be permitted to receive, any compensation that constitutes interest under
Applicable Law in excess of the maximum amount of interest permitted by Applicable Law.


 


 









 





(d) Interest. Interest shall commence accruing on the date hereof, shall be
computed on the basis of a 365-day year and the actual number of days elapsed and shall be
payable quarterly on the last Business Day of each calendar quarter, beginning December 29, 2006.
The applicable Interest Rate for each calendar quarter shall be determined as provided in Section
1(a) on the last Business Day of each calendar quarter.



(e) Payments. All payments shall be made at such address as the Holder shall
hereafter give to the Company by written notice made in accordance with the provisions of this
Note. Whenever any amount expressed to be due by the terms of this Note is due on any day which is
not a Business Day, the same shall instead be due on the next succeeding day which is a Business
Day and, in the case of any interest payment date which is not the date on which this Note is paid
in full, the extension of the due date thereof shall not be taken into account for purposes of
determining the amount of interest due on such date. The Principal amount of this Note, together
with any unpaid interest thereon, shall be due and payable on the Maturity Date.



(f) Prepayment. The unpaid Principal balance of this Note, together with all accrued
and unpaid interest, may at the Company’s option be prepaid in whole or in part, at any time or
from time to time upon ten (10) days’ prior written notice to the Holder stating the Principal
amount to be prepaid and the date on which such prepayment shall be made. Any prepayments
hereunder shall be applied first, to all interest accrued but unpaid at such prepayment date and
second, to outstanding Principal amounts.



2. Subordination. The payment of principal and interest on this Note is hereby subordinated
to the Senior Debt and Holder will not ask, demand, sue for, take or receive from the Company, by
setoff or in any other manner, the whole or any part any amount payable with respect to this Note
(whether such amounts represent principal or interest, or obligations which are due or not due,
direct or indirect, absolute or contingent), including, without limitation, the taking of any
negotiable instruments evidencing such debt, nor any security for any of the Note, unless and until
all Senior Debt, whether now existing or hereafter arising, shall have been fully and indefeasibly
paid in full in cash and satisfied and all financing arrangements between the Company and all
holders of the Senior Debt have been terminated; provided, however, that Holder may
receive from the Company scheduled payments of principal and interest with respect to this Note on
an unaccelerated basis so long as no Senior Default has occurred and is continuing or would result
therefrom. If a Senior Default has occurred and is continuing or would result from any scheduled
payment of principal or interest by the Company with respect to this Note, then, until the Senior
Default which has occurred or which would result from such payment has been cured, no payment of
principal or interest shall be deemed due or otherwise payable under this Note.



3. Events of Default. Each of the following events shall be deemed an “Event of
Default”:


 


 









 





(a) The Company fails to pay the Principal hereof or interest thereon when due on this Note,
whether at maturity, upon acceleration or otherwise;



(b) Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings
for relief under any bankruptcy law or any law or the relief of debtors shall be instituted by or
against the Company or any subsidiary of the Company, unless such proceeding shall be stayed within
thirty (30) days;



(c) The Company or any subsidiary of the Company shall make an assignment for the benefit of
creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a
substantial part of its property or business, or such a receiver or trustee shall otherwise be
appointed;



(d) Any representation or warranty of the Company made herein or in any agreement, statement
or certificate given in writing pursuant hereto or in connection herewith (including, without
limitation, the Purchase Agreement and the Registration Rights Agreement), shall be false or
misleading in any material respect when made and the breach of which has (or with the passage of
time will have) a material adverse effect on the rights of the Holder with respect to this Note,
or the Purchase Agreement;



(e) Any material failure by the Company to perform or observe any of its covenants contained
in the Purchase Agreement where such failure continues for a period in excess of five (5) days
after written notice from the Holder or actual knowledge of the Company of such failure;



(f) If a final judgment, writ or similar process is entered or filed against the Company or
any subsidiary of the Company or any of its property or other assets in an amount in excess of
$50,000, which is not, within twenty (20) days after the entry thereof, discharged or the execution
thereof stayed pending appeal, or within twenty (20) days after the expiration of such stay, such
judgment is not discharged;



(g) Any default with respect to any other Indebtedness for Borrowed Money, as defined in the
Purchase Agreement or liabilities of the Company or any of its subsidiaries in any amount in excess
of (i) $50,000 individually or in the aggregate with respect to Indebtedness for Borrowed Money, as
defined in the Purchase Agreement, (ii) $50,000 individually with respect to liabilities and (iii)
$100,000 in the aggregate with respect to liabilities and Indebtedness for Borrowed Money, as
defined in the Purchase Agreement, provided, that such event shall only constitute an
“Event of Default” where the effect of such default is to permit the holder thereof to accelerate
the maturity of such Indebtedness for Borrowed Money, as defined in the Purchase Agreement or
liabilities, as the case may be, but only if (x) the holder elects to exercise such a right to
accelerate the maturity of such Indebtedness for Borrowed Money, as defined in the Purchase
Agreement or liabilities, as the case may be, and (y) where such default continues for a period of
fifteen (15) days after written notice from the Holder or actual knowledge of the Company of such a
default, and provided, further, that a default with respect to liabilities shall
not constitute an “Event of Default” where the Company in good faith objects to
the amount or obligation to pay the applicable liability and makes appropriate reserves for such
liability, if necessary, in accordance with GAAP.


 


 









 





(h) Any liquidation, dissolution or winding up of the Company and its subsidiaries or its
business;



(i) If the Company reports a net loss, as determined in accordance with U.S. generally
accepted accounting principles, in excess of (i) $1,000,000 for any calendar quarter after the date
hereof, or (ii) $2,500,000 for any three consecutive calendar quarters after the date hereof;



(k) Any event, circumstance or conditions exists which could reasonably be expected to result
in a Material Adverse Effect on the Company and its Subsidiaries, provided that the
Holder shall provide thirty (30) days written notice to the Company if it intends to declare an
Event of Default under this paragraph 3(k) and provide the Company with an opportunity to present
evidence satisfactory to the Holder in its sole discretion that such event, circumstance or
condition has been remedied; or



(l) The Company shall fail to maintain the listing of the Common Stock on at least one
of the OTCBB or any equivalent replacement exchange, the Nasdaq Global Select Market, the Nasdaq
Global Market, the Nasdaq Capital Market, the New York Stock Exchange or the American Stock
Exchange




4. Consequences of Event of Default



(a) If there shall occur, after the fulfillment of any applicable notice and cure provisions
(if any), any Event of Default specified in sections (a), (b) or (c) of Section 3 hereof, the
unpaid Principal balance of this Note and all accrued interest thereon shall be immediately due and
payable, without presentment, demand, protest or notice of any kind, all of which are expressly
waived.



(b) If there shall occur, after the fulfillment of any applicable notice and cure provisions
(if any), any Event of Default other than those listed in Section 4(a) above, the Holder may, at
its option, by written notice to the Company, declare the entire Principal balance of his Note and
all accrued interest thereon due and payable, and the same shall thereupon become immediately due
and payable without presentment, demand, protest or (except as required hereby) notice of any kind,
all of which are expressly waived.



(c) If an Event of Default shall occur, the Company shall pay the Holder hereof all costs of
collection, including reasonable attorneys’ fees.


 


 









 






5. Definitions



“Applicable Law” means that law in effect from time to time and applicable to this
Note which lawfully permits the contracting, charging, taking, reserving and/or collection of the
highest permissible lawful, non-usurious rate of interest or amount of interest on or in connection
with this Note.



“Business Day” means any day other than a Saturday, Sunday or a day on which
commercial banks in the city of Denver, Colorado are authorized or required by law or executive
order to remain closed.



“Senior Debt” means all indebtedness, obligations and other liabilities of the Company
to (i) Vectra Bank Colorado, national association, pursuant to that certain First Amendment to
Credit Agreement dated August 3, 2006, as amended, (ii) United Western Bank (“UWB”) pursuant to
that certain Credit Agreement dated May 7, 2007 between UWB and Maker, as the same may be amended,
modified, restated or extended from time to time, (iii) BOCO Investments, LLC under that certain
Senior Subordinated Note dated October 25, 2007.



“Senior Default” means any “Default,” “Event of Default” or any condition or event
that (with or without notice, lapse of time, or both) would permit Holders of Senior Debt to
accelerate the maturity of such Senior Debt if that condition or event were not cured or removed
within any applicable grace or cure period set forth therein.



“Third Party Senior Debt” means all indebtedness, obligations and other liabilities of
the Company which relate to specific real estate properties and are guaranteed by the Company.





6. Miscellaneous



(a) No failure or delay on the part of the Holder in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privileges. All rights and remedies existing hereunder are cumulative
to, and not exclusive of, any rights or remedies otherwise available.



(b) Any notice herein required or permitted to be given shall be in writing and may be
personally served or delivered by courier or sent by United States mail and shall be deemed
to have been given upon receipt if personally served (which shall include telephone line
facsimile transmission) or sent by courier or three (3) days after being deposited in the United
States mail, certified, with postage pre-paid and properly addressed, if sent by mail. For the
purposes hereof, the addresses of the parties for receipt of notice hereunder are:




If to the Company:




Across America Real Estate Corp.

1660 Seventeenth Street, Suite 450

Denver, Colorado 80202

Attention: Chief Executive Officer

Telephone: (303) 893-1003

Facsimile: (303) 893-1005


 


 









 






With a copy to:




David Wagner & Associates, P.C.

8400 East Prentice Ave.

Penthouse Suite

Greenwood Village, Colorado 80111

Attention: David J. Wagner, Esq.

Telephone: (303) 793-0304

Facsimile: (303) 409-7650




If to the Holder:




GDBA Investments, LLLP

1440 Blake Street, Suite 310

Denver, CO 80202

Facsimile: (720) 932-9397

Attention: Chief Executive Officer




With a copy to




Davis & Ceriani P.C.

Suite 400, Market Center

1350 Seventeenth Street

Denver, CO 80202

Facsimile: (303) 534-4618

Attention: Patrick J. Kanouff



(c) This Note and any provision hereof may only be amended by an instrument in writing signed
by the Company and the Holder. The term “Note” and all reference thereto, as used throughout this
instrument, shall mean this instrument as originally executed, or if later amended or supplemented,
then as so amended or supplemented.



(d) This Note shall be binding upon the Company and its successors and assigns, and shall
inure to be the benefit of the Holder and its successors and assigns. Notwithstanding anything in
this Note to the contrary, this Note may be pledged as collateral in connection with a bona fide
margin account or other lending arrangement.


 


 









 





(e) This Note shall be enforced, governed by and construed in accordance with the laws of the
State of Colorado applicable to agreements made and to be performed entirely within such state,
without regard to the principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of federal or state courts located in Denver, Colorado with respect to any
dispute arising under this Note. Both parties irrevocably waive the defense of an inconvenient
forum to the maintenance of such suit or proceeding. Both parties further
agree that service of process upon a party mailed to the notice address set forth in this Note by
registered first class mail shall be deemed in every respect effective service of process upon the
party in any such suit or proceeding. Nothing herein shall affect either party’s right to serve
process in any other manner permitted by law. Both parties agree that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.



IN WITNESS WHEREOF, Company has caused this Note to be signed in its name by its duly
authorized officer this 30th day of June, 2008.



	 	 	 	 	 
	 	ACROSS AMERICA REAL ESTATE CORP.

 	 
	 	By:  	/s/
 	 
	 	 	Name:  	Peter Shepard 	 
	 	 	Title:  	Chief Executive Officer